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Winter '95
From the Chair by Thomas V. Trainer At last count, our Section had 3 85 members, a remarkable number for a group just entering its second year. According to our membership list, we come from almost all sectors of the private bar, from the public sector bar, and from the judiciary. We include legal assistants and some very hard-worldng associates from the aging network We are a diverse body, and undoubtedly have a variety of goals and expectations. The Elder Law and Advocacy Section Council and I ask you to let us know what you wish to gain from your association with the Section. You can let us know through letters to the Editor or to me. In turn though, we want you to be aware of the purpose behind forming the Section. As stated in our by-laws: The purpose of this Section shall be to advocate for the rights of elders and educate members of the State Bar, as well as the public, so that all elders can have access to quality legal services. The goals of the Section shall be to serve the cider population and advocate on behalf of their interests concerning professional practices, legislation, and public policy which affect the practice of elder law and related issues; provide education and pro bono services to elders with regard to legal practices, rights, and consumer issues; advocate and serve as an education resource for members of the State Bar for the purpose of fostering professional development and the advancement of "best practice" elder law standards; recognize the diversity and serve the specialized needs of the elder population; establish and maintain viable working relationships with the aging network and the human services system; and promote awareness and involvement of State Bar members, human service professionals and the general public regarding the purpose and work of the Elder Law and Advocacy Section. As noted above,. one goal is to advance "best practice" standards in the field of elder law. Our Proposed Practice Standards have twice been published, with little response. If you wish to comment on the Standards, please send your remarks to Tonv Kogut. Q: I have an elderly client who is seriously ill. He wants to provide for his elderly spouse and preserve his assets for his children. Is there any way to achieve both of these goals while permitting the sumving spouse to qualify for Medicaid if she requires nursing home care? A:The client may wish to consider a testamentary trust for the benefit of his surviving spouse that distributes the trust corpus and any accumulated trust income to his children upon the surviving spouse's death. The principal of a testamentary trust is not a countable asset in the Medicaid program. Care should betaken in drafting the trust to include unambiguous provisions which make it clear that 1) payments from the mw may be made to supplement, but not replace Medicaid, 2) the trustee may not make payments for anv purpose that would disqua lify the beneficiary from Medicaid, and 3) the trust terminates if any governmental agency seeks to invade it to pay for the costs of care otherwise payable under Medicaid. Note. however, that the surviving spouse's elective share in the deceased spouse's estate mav be considered as an available resource by Medicaid. To the extent the testamentary trust does not allow for payment of such an amount to the beneficiary, the state may seek to compel tfie surviving spouse to elect that amount from his estate because it is a resource to which she is entitled. Failure to do so could cause her to experience a penalty period of ineligibility for Medicaid coverage of her nursing home case based on the amount of her elective share. This problem mav be averted by setting aside the elective share and creating the testamentary trust from the residue of the estate. As with all Medicaid issues, the practitioner should proceed with caution because of the complex and ever-changing rules which govern this program. Answer proiided by David Shatiz by Gary Hayden, Chair The Pro Bono Committee of the Elder Law and Advocacy Section was launched during the summer of 1994. The former Chair, Dick Molloy, sent letters to all members of the Section, inviting them to join the committee. Twenty-four members of the Section joined the committee and a kickoff meeting was held in Dearborn on August 24, 1994. At that meeting, we discussed the mission of the pro bono committee and we attempted to identify attainable goals. The members agreed that the purpose of the pro bono committee is not to provide pro bono services to seniors ourselves (although all committee members are encouraged to provide such service on their own). Rather, the comniittee's purpose is to find ways to increase the supply of free or reduced-cost legal services to seniors and inform seniors of the availability of these services. At the ldck-off meeting, members discussed several potential projects. including: identifying programs in Michigan that are interested in referring seniors to pro bono lawyers and publishing in the Michigan Bar Journal a comprehensive listing of these programs-, contacting large law firms and corporations and encouraging them to create a pro bono program (emphasizing elder law) if they do not have a program. or, .if they already have a pro bono program, encouraging them to direct their efforts toward elder law; and increasing seniors' awareness of pro bono resources by 1) attending local law fairs, 2) preparing written materials for distribution to seniors, or 3) asking Elder Law and Advocacy Section members to make presentations to senior groups. The committee members agreed that initial projects should be focused in two general directions: á increasing lawyers' participation in pro bono programs for seniors and á identifying need in the senior population and increasing seniors' awareness of pro bono resources that are presently available. Dick Molloy and I are leading a project to identify the present providers of services to seniors who are interested in referring seniors to pro bono lawyers and to publish a list of these providers in the Michigan Bar Journal. Cherie Mollison offered to lead a project to identify seniors in need of pro bono legal services and to inform those seniors of available resources. Joyce Brown and Chervl Warren offered to assist Cherie on this project. To make it easier for law firms and corporate law departments to do pro bono legal work for seniors, Kate Martin, Managing Attorney of the Legal Hotline for Older Nhchiganians (the Legal Hotline), is developing a comprehensive package of materials that she calls "Pro Bono in a Box." This package is designed to allow an interested firm to set up an in-house pro bono project to serve seniors who have called the Legal Hotline for help. When this package is available (in mid-spring 1995), the comniittee will work with Kate to present the materials to large law firms and corporate law departments. "Pro bono in a Box" should make it easier for the committee to convince lawyers to provide pro bono services to seniors, because it will provide them with a (Continued on page 3) (Continuedfrom Plg, 2) ready-made avenue to channel their effor,. At the same time, the
conun'ttee's involvement will assist Kate bY giving her the opportunity to contact more prospective Particpants faster. The pro bono committee is still in the embryonic stages, but we are enthused by the OPPO@ties that we see and are committed to achieving our goals. w@ 1995 1994 Laws of Interest to Seniors Lcist yecir, over 3,000 bills were introduced in the Michigcin 5enote and House of Representcitives, and 440 were enacted into low. Following is a summary of several of these new laws of interest to you andyour clients. Reprinted with permission from Aqinq Alert.
MEDIGAP POLICIES Public Act 40: Requires Medicare supplemental policies sold by Blue Cross Blue Shield of Michigan to conform with federal standards already required of commercial insurance companies. (Effective Mar. 11, 1994.) WHEELCHAER LEMON LAW Public Act 54: Requires manufacturers to provide warranties for new and used wheelchairs, and to repair or replace wheelchairs that don't comply with those warranties. (Effective Mar. 30, 1994.) NURSING HOMES Public Acts 73 & 74: P.A. 73 prohibits homes from requiring patients (or their families) to pay privately for a specified amount of time, before applying for Medicare or Medicaid benefits. P.A. 74 requires homes withdrawing from participation in the Medicaid program to keep patients already on Medicaid. (Effective Aptil 10, 1994.) HANDICAPPER PARKING Public Act 103: Imposes stricter standards to qualify for the use of special parldng spaces and the free use of metered parking. Requires a medical evaluation by a physician. (Effective Ap?ll 17, 1994.) VULNERABLE ADULTS Public Acts 149 & 150: P.A. 149 institutes criminal penalties of up to 15 years imprisonment for the abuse or neglect of vulnerable adults, whether by facility staff or informal caregivers. P.A. 150 increases penalties for operating an adult foster care home without a license and prevents abusers from receiving a state license to operate a home. (Effective June 6, 1994.) PAIN -NTANAGEMENT Public Acts 232, 233, 234, 235, & 236: Creates an advisory comntittee in the Dept. of Public Health on pain management, requires insurers to offer hospice care as a benefit, and requires continuing education for health professionals on pain management. (Effective June 30, 1994.) PROBATE Public Act 274: Allows the probate court to turn over estates of up to $15,000 to the surviving spouse, or other heirs. The previous limit was $5,000. (Effective July 10, 1994.) MEDICAL CARE SAVING ACCTS Public Acts 289 & 290: Allows state tax deductions for medical care savings accounts, similar to IRA accounts. Accounts may be set up by employers and individuals. (Effective July 13, 1994.) Legal el@, for the Elhas @uced a 22-minute $etf-Help for B cli@ cormu about eligibility, for benefits.'@@'Th6@ video n fbr@@@,'@de@bes"Iell 11th @SSIandTOGuides gP1C 20090ellonsnow, ABA Bulletin News El A new Elder Low Er Policy Research Pro ra m was established at the Government Center of Albany Law School. The Program, an outgrowth of an Elder Law pilot program initiated in 1993, will conduct research, produce analytic studies, develop legal and policy options and present conferences and seminars addressing key Elder Law and policy issues such as income security, kinship care, elder abuse, health and housing. A Kinship Care Conference in February 1995 will examine the financial, legal and social issues pertaining to the care of children by a relative other than a parent and has been designated as a White House Conference on Aging event. Policy recommendations from the conference will be forwarded to Washington for the 1995 National White House Conference on Aging in May, 1995. 0 The American Association of Retired Persons (AARP), the Consortium for Citizens with Disabilities (CCD), and the National Institute for Dispute Resolution (NIDR) are cosponsoring A Conference on Disability, Aging, and Dispute Resolution on March 30-April 1, 1995 in Washington D.C. Attendees will learn how mediation and other forms of dispute resolution can be use@ in the fields of disability anct aging and explore the benefits of collaborative problem solving for a range of conflicts. To receive more information, please send your name and address to : Collaborative Approaches, AARP Consumer Affairs, 601 E Street, N.W., Washington DC 20049. 0 The ABA Commission on Legal Problems of the Elderly has compiled a bibliography of guardianship training and educational materials. The bibliography lists handbook, curricula, and videos by state and by target audiences (judges, attorneys, guardians ad litem, professionals, and the public). For a copy, send a check for $5, made payable to the ABA, to the Commission at 1800 M Street N.W., Washington DC 20036. w@ 1995 Congress to Consider Senior Equity Act Reprinted with permission from Aqinq Alert December 1994 While some provisions of the limit Republican Contract with America threshold has been than $44,000) pay federal income are causing controversy, many recommended by many senior groups, taxes on 85% of their Social Security seniors are likely to favor one bill out including the American Association benefits, or 85% of income above of the ten bill package - the Senior of Retired Persons (AARP). those thresholds, whichever is less. Prior to this increase, single seniors C@s' Equity Act. .......... . .... . . . . . . . who earned more than $25,000 (and The bill would do three things to c ouples who earned more than lessen the financial burdens faced by $32.000) paid income tax on 50% of older Americans. First, it would their benefits, or 50% of income allow worldng seniors to keep more of above those thresholds, whichever is their Social Security earnings. In less. The decrease would be phased 1994, older workers between the ages Second, the bill would reduce in completely by the year 2000. of 65 and 69 lost one dollar of Social federal income taxes on Social Third, the bill would address the Security benefits for every three Security benefits. Specifically, the largest out-of-pocket health care cost dollars they earned over $11,160.00. tax increase on benefits adopted in Under the Equity Act, that threshold 1993 (as part of President Clinton's The Senior would increase to $15,000 in 1996, deficit reduction plan) would be $19,000 in 1997, $23,000 1998, repealed. Under the 1993 increase, $27,000 in 1999, and $30,000 in the single seniors who earn more than year 2000. Increasing the earnings $34,000 (and couples who earn more * * provide Of long faced by the elderly by encouraging the purchase of long term care insurance. This would be done by allowing tax-free withdrawals from Individual Retirement Accounts and other retirement plans for the purchase of long term care insurance, and allowing fife insurance policies to pay accelerated death benefits if the client is terminally dl or moves to a nursing home. In addition, long term care insurance would become a taxftee employee fringe benefit, and long term care insurance premiums would become tax-deductible, up to a certain limit based on age. 5 sjs Wmkr 199,5 How to Avoid Loss of u Help Seniors 0 Reprinted with permission from Consumer Concerns for Older Americans, a publication of the National Consumer Law Center's Eldercare Initiative in Consumer Law. Maintaining utility service is a crucial issue for older Americans. While these consumers may not be able to afford to pay their utility bills, they cannot afford to go without service either. For older consumers, it may be particularly difficult to cut back on their use of basic utilities, especially during the winter or summer months, because of the serious threat that extreme temperatures can pose to their health. For retired or disabled seniors, reducing their basic electric, gas, or water bills will be even harder because they may spend more time at home. Significant savings in utility bills normally require major investments in energy-efficient appliances, insulation, and home repairs, which may be beyond the reach of financially limited consumers. Unable to reduce utility costs and unable to cover the cost of utility bills, many older Americans accrue substantial debts to their utility companies. Unpaid utility bills can mean loss of water, electric, or gas service, which can have dire consequences for seniors, particularly in the winter or summer months. Moreover, for seniors who may be tenants, loss of utility service may pose the possibility of eviction, since landlords view loss of utility service as a potential hazard for the rental unit. This article offers practical advice on how to prevent a utility termination before it is threatened and how to challenge a pending utility termination. Key Soumes of Assistance Seniors with utility problems need to consult someone experienced in utility law or practice. Local legal senices offices have suggestions on how to 6 protect your older clients. A local community action program can be another good source for advice, especially if the program administers an energy assistance or weatherization program. Area Agencies on Aging or other state, local, or nonprofit advocacy groups that work with seniors may also be able to offer suggestions. Strategies for Becoming Current on Utility Bills *Level Payment Plans: A Level Payment Plan may help your clients who are current on their utility bills, but who may have trouble paying their bills at certain times of the year, especially in the winter, when heating bills are high. To avoid running up debts @ng these months, clients can establish level payment plans. in such a plan, the client's projected yearly bill is divided into equal monthly installments; and monthly bills reflect this amount rather than each month's actual costs. At some pomt during the year, the average bill and the actual usage are reconciled. 9 Budget Payment Plans: Households in financial distress can quickly get so far into the hole with their utility bills that a level payment plan is not enough. The household cannot catch up on back due payments and also keep up with current utility bills. One solution is for the consumer and utility to negotiate a budget payment plan whereby the consumer makes a fixed monthly payment and the utility promises not to shut off service. State utility commissions often require utilities to offer such a plan. The utility company is likely to want a payment plan that requires larger payments than the customer can afford Too many consumers, believing they have no choice, agree to these payments. If a company should refuse to agree to a reasonable payment plan, help can be obtained from the consumer division of the local utility commission. o Federal EnerU Assistance: The federal Low Income Home Energy Assistance Program (LffMAP), administered by the states, helps lowincome households pay their winter heating bills. Some states also use LIBEAP funds to assist with sununer cooling expenses. All states set aside some of these funds to help out in times of crisis. Guidelines for LEHEAP eligibility vary by state, but most states require that family income over the past three or twelve months be below 150% of the poverty level. LUMAP requires special outreach to senior households so many AAAs or other local agencies worldng with seniors may be able to provide information about how to apply for it. Benefits arc usually paid directly to the utility company or fuel vendor, and the household's utility or fuel obligation is reduced accordingly. Utilitv Fuel Funds: Many utility companies participate in special funds, sometimes directly subsidized by other customer contributions, to give loans or grants to those who cannot pay their utility bills. To determine the availability of these funds, contact the utility company or the local agency that administers the LE[FEAP program. Many of these fuel funds focus specific attention on helping seniors. o Discounted Rates: Some electric, gas and water utilities have special discounted rates for low-income, elderly and/or disabled households. Ask your utility company or the state public utilities comnussion if there is a special, lower rate for seniors. 9 Charities and Other Private Sources: Many charities, churches, and other private organizations help people pay their utility bills. These groups provide assistance only when they have funds available, and sjs w@ 1995 . .......... .@............. New@@Resource ai@ia a Alzheimer s d Reta De.men SI Issues in Car tmen the A4 el on @@Aizh FO @ci@ @odies @cor ime @l ent @825 0907.@ 50 sometimes only at certain times of the year. In some geographic areas, AAAS, community action programs or agencies or organizations that work with seniors maintain referral lists of such private energy assistance programs. Fighting a Termination of Service The threat of immediate termination of service, and the need to restore service that has already been terminated, are the two most urgent problems faced by utility customers. In many states, statutes and public utility conunission regulations provide a variety of significant protection against 'utilitv terminations. These protections in'clude: Financial Hardship: Public utility comniission regulations in some states prohibit or restrict termination of service for households whose income falls below certain levels, or whose income is restricted to certain goverrunent benefits, or who can otherwise demonstrate financial hardship. * Serious Hiness: Similarly, state law or public utility commission regulations often restrict termination of service for households whose members face a serious illness, are threatened with serious illness, or depend upon life support systems. Often the illness must be certified by a doctor. 4 Special Rules for Seniors: Some states offer general protection for older consumers, while others protect them against termination if a winter storm is forecast or if the temperature is expected to drop below a certain level. # Tenant Protection: It is all too common, particularly in diiticult economic times, for a landlord to fail to pay for utility service, putting tenants at risk of losing the utility service. Tenants in this situation sometimes have special protection. In some states, tenants must receive a special shutoff notice if the landlord is delinquent. Then tenants make utility payments directly to the utility , and deduct those payments from their rent. Contesting the Termination: A utility commission's consumer division responds to phone calls. letters, and visits by residential customers. Many of their complaints are resolved informally, by consultation between the consumer division and the utility. Consumer divisions also hold hearings on complaints that cannot be resolved informally. In large states, several hundred of these hearings are held each year. Consumers generally have a legal right to a hearing whenever they have grounds to dispute a utility termination. Simply request the utility commission to provide a hearing before service is terminated. While municipal utilities are generally not regulated by the utility comniission, customers of municipal utilities have a constitutional right to a hearing before termination. |
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